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GS Paper II – Indian Polity and Governance – Constitution Political System. Structure, Organisation and Functioning of the executive and judiciary. News: Recently, a case has been filed by 2 judicial officers from Himachal Pradesh. |
What is the Indian judiciary’s collegium system?
The Supreme Court and High Court use the Collegium system for the appointment and removal of justices.
The Constitution is not its foundation. Rather, it has changed as a result of Supreme Court rulings.
The appointment and transfer of judges are recommended by the Chief Justice of India (CJI) and the four seniormost Supreme Court judges under the current arrangement.
In the meanwhile, the Chief Justice of the court and the two most senior judges serve as the leaders of a High Court Collegium.
The government may also object to the Collegium’s decisions and request further information, but if the Collegium selects the same candidates again, the government will be forced to appoint them.
Articles on Judicial Appointments under the Constitution
Articles of the Constitution
Section 124
Judges of the Supreme Court and the High Courts that the President deems essential should be consulted before any Supreme Court judges are nominated. Except for their own nominations, the CJI must be consulted.
Section 217
Judges of the High Court ought to be appointed by the President following discussions with the state governor and the Chief Justice. Consultation should also take place with the Chief Justice of the relevant High Court.
What led to the establishment of the Indian collegium system?
A sequence of Supreme Court rulings served as the inspiration for the collegium system:
In S P Gupta v. Union of India, 1981 (First Judge Case), the Supreme Court ruled that consultation in the appointment process just entails a sharing of opinions and does not need for concurrence.
Advocates-on-Record Association of the Supreme Court v. Union of India, 1993 (Second Judge Case):
The Supreme Court changed the meaning of consultation to entail acquiescence, overturning its earlier ruling.
It was determined that the President must abide by the CJI’s advice when it comes to selecting justices for the Supreme Court.
Moreover, before providing such guidance, the CJI must confer with two of his most senior colleagues.
In the Third Judge Case of 1998, the Supreme Court ruled that “consultation of plurality judges” is a necessary part of the consultation procedure that the CJI must implement.
A collegium consisting of the four seniormost Supreme Court judges should be consulted by the CJI. They ought not to forward the suggestion to the administration, even if two judges render a disapproving ruling.
Law of 2014, National Judicial Appointments Commission (NJAC): It was introduced to take the place of the previous collegium method for choosing judges.
But a five-judge Constitution Bench ruled that it was unconstitutional and void, arguing that it endangered the judiciary’s independence.
Criticisms of the Collegium System :
- Lack of transparency: The collegium system is frequently accused of lacking transparency because the public is not informed of the reasoning behind the collegium’s choices.
- Court vacancies: Due to a lack of effort, cases have been pending as the judiciary struggles to fill vacancies.
Three spots remain open in the Supreme Court and 380 in the High Courts as of August 2022. - Allegations of family: Allegations of partiality and nepotism within the collegium structure have been made.
In 2009, the Law Commission also observed that the collegium system was riddled with political favouritism and nepotism. - Opposed to the concept of checks and balances: The collegium system guarantees the total absence of the executive from the judicial nomination process, which results in a dearth of accountability. As such, it violates the concept of checks and balances.
- Absence of women’s representation: The collegium system fails to provide sufficient representation for women in the courts.
For instance, of the 33 justices currently sitting on the Supreme Court, four are women. On the other hand, women make up 11.5% of judges on high courts. - Judge transfers: At the moment, neither the government nor the Supreme Court reveal the cause of a judge transfer. The independence of the judiciary may be in danger.
WAY FORWARD :
Modifying the MoP: It is time to make changes to the current MoP. To maintain checks and balances, this may involve including members from the executive and judicial branches in the decision-making process on the appointment of judges.
Increasing the requirements for eligibility: It should incorporate additional standards for evaluating candidates’ fitness and merit in addition to those outlined in the Constitution.
All qualified applicants may get an open invitation to apply in the required format for the judicial position.
Increasing diversity: Women ought to be fairly represented in nominations to the judiciary.
Increasing openness: The collegium members should keep a list of applicants who they independently applied, nominated, or considered.
The collegium may share written views on any topic.
The minutes should provide a record of the collegium’s proceedings.
Recommendations made by the Law Commission of India: Judges to High Courts and the Supreme Court should be appointed and chosen on an equal basis by the judiciary and the administrative branch.
The retirement age for Supreme Court judges should be raised to 68 years, and judges of the High Court should have an age limit of 65 years.
Three sources are considered for the appointment of Supreme Court judges under Article 124(3). Nevertheless, not a single eminent jurist has been appointed in the last fifty years. Appointing sufficiently deserving individuals from these sources was advised.
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